Despite endorsements from a large coalition of organized religions and civil rights groups, California Gov. Pete Wilson vetoed a religious-liberty protection bill, condemning it as a threat to law enforcement.

The Religious Freedom Protection Act, introduced by Assemblyman Joe Baca in January, won overwhelming approval in both the Assembly and Senate. The act was written by the Coalition for the Free Exercise of Religion and intended to codify a strict legal standard for state judges to use when deciding if a law infringes on a person's First Amendment right to the free exercise of religion.

The act would have required state courts to use the “compelling interest/least restrictive means” test when deciding if laws or government actions applicable to everyone happen to impinge upon some people's religious beliefs or practices. That means laws intended to apply to everyone must not infringe on religious liberty unless government has a compelling interest in doing so, and uses the least-restrictive means of regulating religious practices.

Congress codified the same test in the Religious Freedom Restoration Act of 1993. That act, however, was invalidated last year by the U.S. Supreme Court. The high court concluded that it was not within Congress' power to rewrite religious-liberty jurisprudence. The coalition had created RFRA of 1993 in response to the Supreme Court's 1990 Employment Div., v. Smith decision. The high court in Smith, concluded that laws of “general applicability” that incidentally infringe on a person's religious practices do not amount to a violation of the free exercise of religion. The court, however, left state legislatures the option of codifying the test.

The coalition's calls for codifying the test in California were met with complaints from the state's corrections department. In June, Michael Neal, assistant director of the corrections department, sent a letter to the California Senate and governor opposing the bill as a hindrance to prisoner control.

“Enactment of this bill would create a major administrative burden for the CDC [corrections department],” Neal wrote. “Proving that CDC is choosing the least restrictive means possible in any case where it substantially burdens an inmate's exercise of religion will create an extremely high legal standard for the state to meet.”

Wilson was swayed by the corrections department's concerns.

In his veto message, Wilson said the act would lead to lawsuits “by prisoners who claim that alcohol, a specific diet, sacred knives, conjugal visits and satanic bibles are all part of their free exercise of religion.”

Steve McFarland, director of the Christian Legal Society's Center for Law and Justice, said that Wilson was misinformed about the act's implications for state prisons and was simply trying to “look tough on criminals” because of political aspirations.

Although McFarland conceded that the bill “would have raised protection for inmates,” he insisted it was nonetheless needed. The free exercise of religion “is an inalienable right, needed by the sincere to rebuild their lives, proven more effective than anything else in reducing recidivism,” he said.

Forest Montgomery, counsel for the office of governmental affairs at the National Association for Evangelicals, which is also a member of the coalition in favor of the act, called the corrections department's objections “bogus.”

Montgomery said that the state's “wardens want all the power and they don't want to hear that prisoners have constitutional rights.” The irony, Montgomery said, was that “men and women are in prison for making the wrong moral decisions and that the only way to keep them from going back is if they get a spiritual dimension in their lives and start making right moral decisions, instead of wrong ones.”

But Wilson's veto message noted that “few rights are as important in America, or epitomize America's values, as the right to freedom of religion.” He said that “both the U.S. and California Constitutions guarantee that right,” and that the act went “beyond those guarantees and sets a test many laws would fail, engendering litigation by prisoners and criminal defendants who would claim that the laws which protect us and preserve order burden their religious beliefs.”

McFarland responded to Wilson's statement, saying “the nation's second largest prison system – the Federal Bureau of Prisons – has found it [the compelling interest/least restrictive means test] quite workable.”

“The way to deal with frivolous litigation by any class of persons is to penalize frivolous litigation, not strip the few meritorious claims of protection – along with every other Californian's free exercise as well,” McFarland said.

McFarland and Montgomery conceded that the act's defeat was a setback for the coalition.

“This is a very painful loss for the cause of religious freedom,” Montgomery said. “However, you don't abandon the field because some governor has made a political decision.”

McFarland said, “Governor Wilson was misinformed and 30 million Californians are the losers.” He said the coalition would convene soon to discuss the ramifications of the loss.

“There is no possibility of an override,” he said, because the legislative session has ended. “So we will have to go back to the drawing board. We won't give up on California.”

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THE EXPERTS

The First Amendment Center is an educational organization and cannot provide legal advice.

Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.

Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.

John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.

About The First Amendment Center

We support the First Amendment and build understanding of its core freedoms through education, information and entertainment.

The center serves as a forum for the study and exploration of free-expression issues, including freedom of speech, of the press and of religion, and the rights to assemble and to petition the government.

Founded by John Seigenthaler, the First Amendment Center is an operating program of the Freedom Forum and is associated with the Newseum and the Diversity Institute. The center has offices in the John Seigenthaler Center at Vanderbilt University in Nashville, Tenn., and at the Newseum in Washington, D.C.

The center’s website, www.firstamendmentcenter.org, is one of the most authoritative sources of news, information and commentary in the nation on First Amendment issues. It features daily updates on news about First Amendment-related developments, as well as detailed reports about U.S. Supreme Court cases involving the First Amendment, and commentary, analysis and special reports on free expression, press freedom and religious-liberty issues. Support the work of the First Amendment Center.

1 For All

1 for All is a national nonpartisan program designed to build understanding and support for First Amendment freedoms. 1 for All provides teaching materials to the nation’s schools, supports educational events on America’s campuses and reminds the public that the First Amendment serves everyone, regardless of faith, race, gender or political leanings. It is truly one amendment for all. Visit 1 for All at http://1forall.us/

Help tomorrow’s citizens find their voice: Teach the First Amendment

The most basic liberties guaranteed to Americans – embodied in the 45 words of the First Amendment to the U.S. Constitution – assure Americans a government that is responsible to its citizens and responsive to their wishes.

These 45 words are as alive and important today as they were more than 200 years ago. These liberties are neither liberal nor conservative, Democratic nor Republican – they are the basis for our representative democratic form of government.

We know from studies beginning in 1997 by the nonpartisan First Amendment Center, and from studies commissioned by the Knight Foundation and others, that few adult Americans or high school students can name the individual five freedoms that make up the First Amendment.

The lesson plans – drawn from materials prepared by the Newseum and the First Amendment Center – will draw young people into an exploration of how their freedoms began and how they operate in today’s world. Students will discuss just how far individual rights extend, examining rights in the school environment and public places. The lessons may be used in history and government, civics, language arts and journalism, art and debate classes. They may be used in sections or in their entirety. Many of these lesson plans indicate an overall goal, offer suggestions on how to teach the lesson and list additional resources and enrichment activities.

First Amendment Moot Court Competition

This site no longer is being updated … And the competition itself is moving to Washington, D.C., where the Newseum Institute’s First Amendment Center is co-sponsoring the “Seigenthaler-Sutherland Cup National First Amendment Moot Court Competition,” March 18-19, in partnership with the Columbus School of Law, of the Catholic University of America.

During the two-day competition in February, each team will participate in a minimum of four rounds, arguing a hypothetical based on a current First Amendment controversy before panels of accomplished jurists, legal scholars and attorneys.

FIRST AMENDMENT CENTER ARCHIVES

State of the First Amendment survey reports

The State of the First Amendment surveys, commissioned since 1997 by the First Amendment Center and Newseum, are a regular check on how Americans view their first freedoms of speech, press, assembly, religion and petition.

The periodic surveys examine public attitudes toward freedom of speech, press, religion and the rights of assembly and petition; and sample public opinion on contemporary issues involving those freedoms.
See the reports.